Internet ain’t broke, don’t let AG try to fix it

For all that we complain about the Internet from time to time, the fact is, for the most part, we love the Internet. Yet not all of us know how the Internet came to be something we would want to love.

It was no accident. Today’s Internet is rooted in specific decisions made by Congress back in the 1990s. By protecting the Internet from needless litigation and censorship, Congress helped give us the Internet we love, an Internet one local politician has set out to take away.

For me, this isn’t just bad judgment; I also take it personally. I was lucky enough as a young lawyer in Washington during those years to work on these issues in my first job. So what Mississippi Attorney General Jim Hood is doing now — trying to force Google to act as a censor and a snoop — is a direct attack on the work that I and all the other free-speech and privacy advocates did, years before companies like Google, Yahoo and Facebook even existed.

What we did is help craft a legal provision in 1996 that guaranteed no one on the Internet — from giants like Google and Facebook down to a single blogger or tweeter — could be held liable for something someone else says or does. The inside-baseball name for this principle is “Section 230”; specifically, Section 230 of the Communications Decency Act of 1996. It’s something that almost everyone agrees the lawyers got right. Without it, a company like Facebook, which hosts hundreds of millions of users posting their opinions on every conceivable subject, couldn’t exist. Search engines like Bing and Google and resources like Wikipedia couldn’t exist either.

Congress ultimately supplemented Section 230 with the Digital Millennium Copyright Act of 1998, which provided copyright-specific protections. But not everyone is happy with all the changes our free-speech Internet has wrought. In Hollywood, the movie studios continue to press for ways to restrict the Internet. They’re afraid Google and other Internet services make it too easy to download unlicensed movies and TV shows. Record companies and recording artists also are worried that Internet-based services will somehow destroy the music business.

They’re not crazy to worry. The Internet does change things. I watch a lot of television on Amazon Prime. I’ve bought music by Taylor Swift or Bruno Mars without ever opening one of their CDs. The Internet is mostly a fountain of opportunities, even as it pushes us to find new ways to do business, be creative, speak freely or connect to one another. Alas, for Hollywood and many other major corporate interests, the connected world in which we now live is a lawless, dangerous place that needs to be reined in.

The most notable recent public effort by the corporate giants was the Stop Online Piracy Act (SOPA), which required a huge public protest to shoot down in Congress. SOPA would have severely damaged the ability of companies like Google or Facebook, or nonprofits like Wikipedia, to serve the public as information resources and global platforms for human collaboration. (Full disclosure: I was a legal adviser for Wikipedia in 2011 and 2012, when the online encyclopedia chose to “black out” its site for a day to challenge SOPA.)

More recently, (and more quietly) the movie studios have pursued new strategies, taking advantage of enterprising government officials like Jim Hood. Hood is now fighting Google in court, arguing the search-engine giant must let him and other top law-enforcement officials go on fishing expeditions in ways that invade our privacy and chill the free speech we have come to expect on the Internet.

Over the last two years, Hood has publicly targeted Google for its video content (YouTube) and for its search results — in effect, he says Google is aiding and abetting crime for its own profit. But as reporters at The New York Times and Ars Technica have shown, Mississippi’s attorney general has found a powerful ally in the Motion Picture Association of America — the movie studios’ trade association. Hood’s recent wide-ranging subpoena of Google was, in fact, secretly drafted for him by the MPAA’s law firm.

The connections between the MPAA and Hood go even deeper. Mississippi’s Clarion Ledger newspaper recently published an opinion article defending Hood written by Hemanshu Nigam, a consultant for an “astroturf” group called the Digital Citizens Alliance, that the Times revealed had been created by the MPAA. Nigam is also (of course) a former vice president of the MPAA.

It’s not hard to connect the dots. The MPAA, unhappy both with the potential for copyright infringement on the Internet and with its SOPA failure, is still pounding away to turn Google into an Internet snoop and enforcer. Other services have been in the same crosshairs, and will be again, if we don’t remind our government officials that the Internet we’ve got is, in fact, the one we want.

I can’t pretend we young lawyers knew back in the 1990s what kind of powerful economic, democratic, freedom-of-speech powers the Internet would someday embody. If we had known it, we’d all be billionaires now. But we could see that if we got the right kind of free-speech and privacy framework in place, more and more Americans, and other folks around the world, would find the Internet to be a huge opportunity for creativity and freedom.

Congress made a great decision in 1996 that gave rise to the Internet we love today. Let’s not let opportunistic politicians and big-money movie studios take that away.

Mike Godwin is general counsel and director of innovation policy at R Street Institute. Contact him at mgodwin@rstreet.org.